Mr. Chief Justice Murray concurred.

This was an action for damages for injuries sustained by the plaintiff in consequence of the overturning of defendants’ coach.

The complaint sets out a contract on the part of the defendants, in consideration of certain money paid by Mm, to convey the plaintiff safely from Illinoistown to the Franklin House, in Placer County, and avers that by reason of the carelessness and improper and unskillful conduct of the driver, the coach was overturned, and plaintiff seriously injured.

The errors assigned are : 1st. The refusal of the Court to non-suit the plaintiff on motion of defendant, because no contract on the part of defendants, or payment of fare by plaintiff, was shown.

It appears that before the accident, the driver was informed that a passenger was to get out at the Franklin House, and that after the accident, the agent of the defendants informed the driver of a coach which had been provided to convey the passengers from the scene of the overturning, that the plaintiff was to stop at the Franklin House. This was a sufficient recognition of the fact, that the plaintiff was a passenger, to establish prima facie the allegation of contract.

It is also contended that the Court erred in refusing to permit the counsel to ask a witness whether the agent of the defendants had not two weeks after the accident, desired plaintiff to go to Auburn, and proffered to furnish Mm with such medical, and other attendance, as he required. The question in the form proposed, was leading, and was not proper to be asked on the direct examination of defendants’ witness.

The evidence of reputation for skill, of the plaintiff’s physician, was properly excluded. It would certainly have been competent for defendants to show in mitigation of damages, that the plaintiff’s injuries were wholly or partially the result of improper treatment on the part of his physician, but we know of no authority for admitting, to establish this fact, evidence of the general reputation of the attending surgeon, and as appellant has furnished no such authorities, we presume he could find none.

The instruction given by the Court was improper under the pleadings, but it is difficult to see how defendants were prejudiced by it; as there is no evidence of any insufficiency of coaches, horses or harness. The evidence for plaintiff charged the accident to the want of proper care and skill on the part of the driver. The instruction was objectionable for want of relevancy, but this of itself is no sufficient cause for disturbing the judgment.

The defendants' motion for a new trial was addressed to the discretion of the Court below, and we have often ruled, that we will not interfere with the exercise of such discretion, where there is any evidence to sustain the judgment.

Judgment affirmed.